* Austin Lovegrove
This article examines the place of intuition and method in the
sentencing judgment in Australia. In doing this, it analyses two
attempts to structure discretion; namely, guideline judgments and
the two-stage approach, focusing on the former, since they
represent a highly developed application of the latter. More
specifically, it is about how judges should digest the facts of a
case as they exercise their discretionary judgment as to what is
appropriate by way of sentence. Thus, there is here not a general
evaluation of guideline judgments canvassing lefal issues (e.g.
constitutionality) and criminological matters (e.g.
effectiveness).
Decision making in sentencing raises weighty and controversial
matters. What apparently is not at issue are the prerequisites of
good legal decision making; namely, judgments should be:
individualised -- numerous matters relating to the circumstances of
the offence and the offender are of potential relevance to doing
justice in the individual case (see the judg ment in the High
Court of Gaudron, Gummow & Hayne JJ in Wong); consistent - like
cases are treated similarly and unlike cases differently (see the
judg ment in the High Court of Gleeson CJ in Wong); coherent -
what is said is what is decided (e.g. when a factor or matter is
said to be important it is in fact given substantial weight) (see
the judgment in the High Court of Kirby Jin Ryan); logical -
judgments, if they could be analysed, would be found to confonn to
an underlying logic (the alternative is arbitrariness); this is
implicit in the basis of the appellate process, as set out in the
High Court judgment of Dixon, Evatt & McTiernan JJ in House;
Kirby J's use of the phrase 'channels of logic' in WrJng (at para
116) in respect of appeals is apposite here.
Yet what patently is at issue is how the best balance between these
four prerequisites is to be achieved. In Australian legal circles,
two options vie for prominence. One is judgment as an
intuitive/instinctive synthesis, the other is judgment by way of a
more or less conscious and explicit framework and process. 2
* MA, PhD. Reader in Criminology, University of Melbourne, Victoria
3010. Email:
[email protected]. This article is based on a
paper presented at 'New Crimes or New Responses·, 4th National
Outlook Symposium on Crime in Australia, Australian Institute of
Criminology, 2001. For this, see for example, Ashworth (1992), Hall
(1991 ), Morgan & Mun-ay ( 1999), and New South Wales Law
Reform Commission (l 996a). Mandatory sentencing and sentencing
grids impose non-intuitive thinking upon sentencers. However, they
are not considered here, since they are not about better legal
decision making; rather they are driven by law and order populism
(see Zdenkowski 2000).
NOVEMBER 2002 INTUITION, STRUCTURE AND SENTENCING 183
Until the late 1980s, in regard to this contention, academics and
reform bodies tended to gather on one side and the judiciary on the
other; the former attacking intuition, the latter defending it.3
Now, the contention is manifest, a]beit muted, within the
judiciary. Thus, although it is the judiciary who have been (and
who largely continue to be) the defenders of the faith in the
intuitive approach to the exercise of their sentencing discretion,
two significant and different forms of what can be regarded as
non-intuitive thinking are to be discerned in the decision making
of sentencing judges. These are more recent developments. Perhaps
the reformers have had an effect.
One form is described, inter alia, as the two-stage approach. It
was the first breach in judicial ranks, appearing in the late 1980s
(see the judgment of the Victorian Court of Criminal Appeal in
Young), and examples conforming to this general approach are to be
found across jurisdictions (see the review in Fox & Freiberg
1999, and in the judgment of the New South Wales Court of Criminal
Appeal in Thomson). In this approach, the judge first determines,
having regard to the facts of the offence, a proportionate
sentence, and then adjusts this in the light of the circumstances
of the offender so as to arrive at a sentence appropriate to the
case.4 When state appellate judges have addressed or commented on
this approach, as against that of intuition, their reactions have
been various; for example: 'calculated to lead to error', in Young
(at 961) (Victoria); 'unwise' and 'unnecessary', in Lett (at 9 per
Hunt J) (New South Wales); 'matter of semantics', in Punch (at 494
per Murray J) (Western Australia); 'permissible', in Nagy (at 650
per McGarvie J, in respect of a discount for co-operation with
authorities) (Victoria); and 'proper', in Raggett (at 52 per
Kearney J) (Northern Territory). Nevertheless, in Wong, Gaudron,
Gummow and Hayne JJ concluded in the High Court that intermediate
appellate authority favours intuition over the two-stage approach.
Yet the division may not be confined within and between the states.
Although the High Court at this stage has not determined a case on
the basis of the correctness or otherwise of the nature of the
approach, at least two judges regard the two stage approach as
erroneous (see the separate judgments of McHugh J & Hayne J in
AB) and another sees a return to unexplained intuition a5. a
retrograde step (see the judgment of Kirby Jin AB).
The :;econ.d form of non-intuitive thinking h lo be found in
guideline judgments. In an elaborated and sy5.tematic form rhey
first appeared in New South Wales ill the latter 1990s, These
judgments may go as far as identifying a pattern of case
characteristics and indicating the sentence or range of sentence
considered appropriale: there may also be an accompanying
non-exhausti\'e list of potcntiaily aggravating and mitigating
factors which, if present may justify a scmcnce outside the range
(see generally, for example, Spigelman 1999; Ashworth 2000). The
Victorian Court of Appeal would appear to have srrong re~ervations
about guideline judgments (see the judgment of Winnekc Pin Ngui);
and the Western Australian Court of Criminal Appeal seems
distinctly unenthusiastic about them (see Morgan & Murray
1999). In its recent judgment in Wong, the High Court provided an
inkling of its feelings about numerical guidance hy way of
guideline judgments, considered generaI!y as a means to justice: my
interpretation of the judgment is that the judges' predispositions
are various: accepting (Gleeson CJ); opposed (Gaudron, Gummow &
Hayne JJ); cautionary (Kirby J); and open (Callinan .1 ).
3 There are notable exceptions to this; for example, the New South
Wales Law Reform Commission (l 996b) favoured intuitive
sentencing.
4 Judgments expre<>sly deducting a quantum of sentence from
what otherwise would have been appropriate. as a means of
specifying the weight given to a factor. may be regarded as a
sub-category of this general approach; in respect of a defendant's
plea of guilty, see the judgment of the Victorian Court of Criminal
Appeal in o·Brien.
184 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 14 NUMBER 2
How judges should digest the facts of a case as they exercise their
sentencing discretion is manifestly contentious. Yet, if Justice
Kirby as a member of the High Court be correct in his observation
that it is too late to return to unexplained intuition (seeAB's
case), then it is no longer profitable to view the problem as a
choice between intuition and non-intuition but rather it is
necessary to frame the problem according to the following two
questions:
what should be the nature and form of the explicit sentencing
framework and process? do the current two non-intuitive approaches
satisfy the prerequisites of good legal deci sion making?
Moving from a set of case facts to a quantum of punishment
represents an exercise in scaling. Yet judicial deliberations on
this matter are not always easy to follow. Indeed, some avowedly
contest the point. In the High Court Justice Hayne asserted that
'[m]etaphorical references to "credit", "discount", or the like,
must ... not be taken literally' (Ryan's case at para 144). Surely,
this cannot be so. If the presence of a factor, such as a guilty
plea, requires a quantum of sentence less than otherwise would be
appropriate, then 'discount' has a literal meaning.5 This is the
orientation of the present answer to these questions. It proceeds
as follows.
1. Nature of and case for judicial intuition in sentencing.
2. Criteria for evaluating intuitive and non-intuitive thought in
sentencing.
3. Nature and form of an elaborated sentencing framework and
process.
4. Guideline judgments as an explicit sentencing framework.
5. The two-stage approach as an explicit sentencing framework and
process.
6. Evaluation of the elaborated sentencing framework and
process.
7. Evaluation of guideline judgments.
8. Conclusion.
Nature of and Case for Judicial Intuition in Sentencing
What is of concern here is how judges reach their decisions, not
how they justify their sentences; it is about decision making (i.e.
judgments in sentencing not sentencing judgments).
Judges have expressed clear views on this. According to them,
decision making in sentencing cannot involve the mechanical
application of quantitative and qualitative rules as a means to a
precise determination of punishment (see the judgment of the
Victoria Court of Criminal Appeal in McCormack, and the judgment of
the High Court in Ryan). This is because of the number and
complexity of the considerations arising in and across cases.
Indeed, for this reason sentencing judgments cannot be but by way
of an intuitive synthesis of all the elements involved in
determining sentence (see the judgment in the Victorian Court of
Criminal Appeal of Adam & Crockett JJ in Williscroft).
Moreover, sentencing cannot but be intuitive because it involves a
feeling for the application of the criminal law to the particular
circumstances of the case (Phillips 1983): this can be thought of
as instinctive justice. Observations of the Victorian Court of
Criminal Appeal on the determination of appeals against the
leniency (and severity) of sentences illustrate this. There it has
been said that' ... whether a sentence is manifestly, as distinct
from arguably,
5 Let it be clear, this is not to imply that paiticular case facts
can be deemed to have a constant percentage effect across cases;
they cannot (see the later discussion).
NOVEMBER 2002 INTUITION, STRUCTURE AND SENTENCING 185
inadequate does not ordinarily admit of a great deal of argument.
Upon inspection of it and identification of the relevant
circumstances, it either appears to be manifestly inadequate or it
does not' (in Scadden at 7 per Phillips CJ; see also the judgment
in the High Court of Gleeson CJ & Hayne Jin Dinsdale).
Those who defend intuition would not argue that by this means the
four prerequisites of good legal decision making -
individualisation, consistency, coherence and logic - are perfectly
met. Indeed, probably there is little disagreement with those who
favour a non intuitive approach as to what the limitations are. In
respect of this, Victorian judges do not regard a sentence as in
error if it falls within the range appropriate to the case (see
Young's case), but admit that judges differ between themselves in
the severity of their sentences (Supreme Court of Victoria 1988)
(also, see the judgment in the High Court of Kirby Jin
Postiglione). But there is disagreement in two respects. First, the
significance of the limitations attending intuitive thought; the
former say justice is nonetheless well served (see Supreme Court of
Victoria 1988; New South Wales Law Reform Commission 1996b), the
latter group disagree (see Victorian Sentencing Committee 1988; Law
Reform Commission Australia 1980, 1988). Secondly, the value of a
framework of some sort for sentencing; the former say justice would
be diminished (see Young's case; and Supreme Court of Victoria
1988; New South Wales Law Reform Commission 1996b), the latter that
it would be enhanced (see Victorian Sentencing Committee 1988; Law
Reform Commission Australia 1980, 1988).
Criteria for Evaluating Intuitive and Non-Intuitive Thought in
Sentencing
What are the agreed limitations of intuitive thinking? and the
perceived dangers of the non intuitive approach? These are
important questions, because the answers provide criteria for
evaluating attempts to develop an explicit framework and process
for sentencing, with respect to what improvements it must offer and
drawbacks it must avoid.
The following !imitations of intuition have been identified in the
literature
I. There is too much room for individual differences with respecl
w: prefe1Ted penal phi losophies; levels of toughness (the
severity of the sanction considered proportionate to a particular
level of seriousness); and factors. as weighted. considered
relevant to the various penal aim'> (this relates to the
prcrequi~,ite of consistency) (see e.g. Aslnvorth et al 1984;
Lovegrove 1984; Palys & Divorski 1984; and the judgment of the
Victorian Court of Criminal Appeal in Ramage).
2. Decision makjng unaided could not be expected to cope with the
inord]nate demands placed on it by the requirements of
individualised justice, requiring as it does the recon ciliation
of numerous and often conflicting matters to be considered singly
and in combi nation (this relates to the prerequisite of
coherence) (Ashworth 1983; Lovegrove 1989).
3. Legal discourse, characterised by and emphasising the expression
of ideas and argu ments in terms of words, does not lend itself to
bringing a sound logic to sentencing, which requires careful
distinctions to be drawn between qualitative and quantitative
decisions, the latter involving complex scaling in terms of
qualitative and quantitative variables and relationships (this
relates to the prerequisite of logic) (Lovegrove 2001; and see
Ranyard et al 1994, for an illustration of the problem).
186 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 14 NUMBER 2
Now consider judicial observations on the dangers inherent in the
use of an explicit sentencing framework and process. (Some of the
points raise overlapping matters but are sufficiently different to
warrant separate consideration.) They are as follows.
1. Many critical factors and factor effects will be omitted from
the framework because it is impossible to take full account of the
complexity of the matters potentially bearing on sentence in any
formal representation of the sentencing decision (see the judgment
in the High Court of Hayne J in AB).
2. When adjusting a notional sentence (the adjustment being within
type of sentence, e.g. a shorter term of imprisonment) there is a
danger that the allowance for the additional matters will not
reflect their true importance because the matters on which the
notional sentence was based will dominate the process (see the
judgment in the High Court of McHugh J in AB).
3. There will be a tendency, particularly over time, for judges to
ignore matters not in the representation of the sentencing decision
(see the judgment in the Victorian Court of Appeal of Winneke Pin
Ngui).
(The above three points relate to the prerequisite of
individualisation.)
4. Factors cannot be considered properly in isolation because the
one factor can relate to several aims; moreover, in each
relationship its effect on what is the appropriate type and quantum
of sentence may differ (see the judgments in the High Court of
McHugh J in AB and of Kirby Jin Dinsdale). Related to this is that
case facts for their significance may depend on the presence or
absence of other case facts (see the judgment in the New South
Wales Court of Criminal Appeal of Gleeson CJ in Gallagher, and the
judg ment in the High Court of Hayne J in AB). Finally, a
particular case fact, be it aggravat ing or mitigating, cannot be
deemed to have a constant percentage effect on sentence across
cases, even in the one category/sub-category of offence; how
significant it is depends on the facts of the individual case (see
the judgment in the High Court of McHugh Jin Ryan).
5. The fixing of a notional sentence in regard to only a sub-set of
case circumstances invites inevitable error because it is
necessarily an artificial exercise (see the judgment of the
Victorian Court of Criminal Appeal in Young). Moreover, in applying
the stand ard, there is the risk of actual circumstances relating
to the case being ignored and in their stead abstract matters
underlying the notional sentence being considered (see the judgment
in the High Court of McHugh Jin AB).
(The above two points relate to the prerequisites of coherence and
logic.)
6. In cases where the notional sentence is of one sanction type
(e.g. imprisonment) and the appropriate sentence is of another type
(e.g. suspended sentence), the process of adjustment for the
additional circumstances lacks a logic (see the judgment in the
High Court of McHugh J in AB).
7. The separate consideration of relevant matters multiplies the
possibility of error, since there is the opportunity of error in
relation to the consideration of each separate matter by itself and
in relation to other matters, and the effects of these errors will
tend to cumulate (see the judgment of the Victorian Court of
Criminal Appeal in Young).
(The above two points relate to the prerequisite of logic.)
NOVEMBER 2002 INTUITION, STRUCTURE AND SENTENCING 187
These judicial sentencing remarks are expressed here in my own
terms so as to facilitate the present analysis in which, as stated
above, sentencing is treated as an exercise in scaling. They were
made largely in regard to the two-stage approach to sentencing.
Nevertheless, they can be treated as applying to guideline
judgments taking the form of a sentence appropriate to a limited
set of case facts and acting as a standard against which allowance
must be made for additional matters.
Nature and Form of an Elaborated Sentencing Framework and
Process
The purpose of this section is to demonstrate by way of
illustration that it is possible to construct a framework and state
a process representing decision making in sentencing. The framework
refers to an inten-elated set of reference points providing a
structure against which judgments are made, and the process
describes how judgments are made in relation to the framework.6 It
will be shown to satisfy the prerequisites of good legal decision
making. Thus it is offered as a standard against which to judge the
two-stage approach and guideline judgments. Such an elaborated
sentencing framework and process will have the following five
characteristics.
1. There will be three components relating to: the selection and
weighting of the aims of sentence; the scaling of the relationship
between case seriousness and sentence severity according to the
principle of proportionality; the aggregation of seriousness
(sentence) across multiple counts according to the
totality principle. 7
2. The framework must be founded on case facts and the process be
in terms of case facts, since case facts are the currency of
justice.
3. The framework and process, while not mathematical, must provide
a mechanism for numerical relationships and he numerically
sound.
4. The appropriate level of detail is that the coverage
incorporates the more common case facts and corn hi nations of ca~e
facts but rnakes no attempt (or pretence) lo be ex haw~~
tive.
5. Since the representation is founded on concrete, case-specific
facts, the appropriate level of differentiation is the category or
sub--category of offence (e.g. burglary or re.si dcn tial
burglary).
Now to a consideration of each of the components.
6 In addition to a framework and a process, the representation
requires content. This covers case facts to be considered, singly
or jointly, as relevant to matters forming part of the sentencing
decision; for example, indicators of an offender's rehabilitation
prospects or circumstances not relevant to mitigation in cases of
rape. Content is not pursued here, since it does not raise the
problem of representing decision making in sentencing, thus falling
outside the scope of the present analysis.
7 There are other decision elements of relevance to sentence,
concerning both the immediate facts of the individual case (e.g.
the sanction most appropriate to the rehabilitation of the offender
when this is the main goal) and matters outside of the immediate
case circumstances (e.g. pmity of sentence between co offenders).
These, however, do not raise the problem of representing decision
making in sentencing. thus again falling outside the scope of the
present analysis.
188 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 14 NUMBER 2
The selection and weighting of the aims of sentence
This is a qualitative decision. It is founded on concrete,
case-specific facts considered singly and in combination as
indicators of the main penal aim - or the mix of aims - appropriate
to the case. This decision represents the judge's interpretation,
based on the facts, of the nature of the offence and the type of
offender before the court. As an interpretation, it has a strong
holistic and subjective character about it. The position can be
illustrated thus. Consider the hypothetical case of a young man
drinking in a hotel who, without provocation, threw a beer glass at
another man, with the result that the victim's sight was seriously
impaired; the offender, who showed some remorse, had a reputation
for violence when drunk, but was without prior convictions and had
steady employment. One possible view of the case is that before the
court is a violent drunk who made an unprovoked attack on an
innocent bystander and injured him permanently; there must be an
attempt to deter the offender and, in view of the seriousness of
the offence, imprisonment is appropriate. Another view of the case,
by way of contrast, is that the offence represents the regrettable
action of a generally solid young man who nevertheless requires
help to moderate his drinking; thus the appropriate response is a
programme of rehabilitation in the community.
Thus the representation of decision making requires the linking of
case facts as indicators of what is appropriate by way of the one
or more aims of sentencing. It will focus on those facts and
combination of facts thought most likely to be a source of
disparate interpretation. The indicators may relate to the offence
(e.g. what makes, say, a burglary particularly serious so as to
warrant deterrence or punishment of the offender), to the offender
(e.g. circumstances favouring rehabilitation), or to both; they may
take the form of single factors or a pattern of factors. The most
appropriate form would be expected to vary across the categories or
sub--categories of offence.
Giving weight to the aims of sentence other than just punishment
can be thought of as a variation from what otherwise would be the
proportionate sentence. In Victoria, for example, when the aim of
rehabilitation is to be given weight, there will be a reduction in
the proportionate term of imprisonment (the head sentence and/or
non-parole period) or a non-custodial sanction when otherwise
imprisonment would be approp1iate. And in regard to incapacitation,
by virtue of statute, it may require an increase in the
proportionate term of imprisonment (see generally, Fox &
Freiberg 1999). The question of how to deal with the relationship
between this component and the second (next) component
remains.8
In respect of this component, the representation of decision making
is underdeveloped. Nevertheless, there is sufficient detail about
its structure and content to evaluate its role in meeting the
criteria of good legal decision making.
The relationship between case seriousness and sentence
severity
This component covers the principle of proportionality. I have
formulated a representation of the associated decision making, and
what follows here is no more than a summary of that work (see
Lovegrove 2001). This decision making represents a quantitative
judgment. It comprises two parts. The first relates to an
assessment of the seriousness of the case, as a combination of case
facts, each fact constituting, as it were, a chunk of seriousness
as aggravation or mitigation, which is to be added or subtracted on
a scale of seriousness. Here the treatment of facts has more of an
analytic and objective character to it.9 In the second part of the
judgment, it is a matter of determining the quantum of sentence
considered
8 It is a matter which, as a numerical problem, has exercised the
judicial mind. See, in the High Court, the judgment of Kirby Jin
Dinsdale.
NOVEMBER 2002 INTUITION, STRUCTURE AND SENTENCING 189
proportionate to the level of seriousness of the case. What form,
then, is the representation of the relationship between case fact,
seriousness and sentence to take? To illustrate this, the offence
of (residential) burglary is used. There is good reason for this.
This offence has been acknowledged as a stumbling block for
narrative guidance. This is because for this offence it has not
been possible to identify patterns of offending and typically no
one case fact is of overwhelming importance in the determination of
sentence (see the judgment in the New South Wales Court of Criminal
Appeal of Grove Jin Ponfield). Thus burglary is a rigorous test of
the power of the present approach as a means of representing
decision making in sentencing.
Now, consider the representation of the assessment of case
seriousness. First, there are the criteria. For proportionality
they will define victim harm and offender culpability, and relate
to both the offence (say, violence experienced by the victim, loss
suffered by the victim, and organisation of the offence) as well as
the offender (e.g. reason for the offence, and prior criminal
record).
Next, each criterion, treated as a dimension. has levels of
seriousness, and each level is defined by the circumstances marking
that degree of seriousness. (They will be defined in term~ of
concrete, case-specific circumstances.) Some of the dimensions will
be quantitative (e.g. degree of loss suffered by the victim),
others will be qualitative (e.g. degree of violence experienced by
the victim). Readily understood is the numerical scaling of the
former: the case facts for loss would be monetary values. How the
latter can be scaled quantitatively is illustrated thus.
Case facts
0 tenorises or injures V, or 0 assaults or ties up V and\ is
elderly or a child
0 assrnlts V (attempt or minor injury) or tic~ up V, or 0 rnnfronts
V and V is elderly or a child
Interpretation/ meaning
Confrontation -- assault
cor front~ V with or without actual threat to ~r-saulL V
Confr<Jlllation ---- fear of injury
Burg:1ry 01.'C!Hs 3t ni3h1 and/or when Vis at horne CPnfrontation
--- potent:al
Burgluy occur'> when V is not at home No viniencc
Levels of seriousness
5
4
Hi'.~ important that the levels along a dirnc,nsion mark
approximately equai steps-up in serio.isness; where this hoids,
there is no need formally to scale these gradations numtrically.
Only in this way can the framework be non-mathematical yet provide
a medanism for quantitative relationships and be numerically sound
(thus satisfying the third of the five characteristics of the
framework, listed above).
TUrdly, the several criteria relating to offence seriousness in
combination determine the serio1sness of the circumstances of the
offence. A particular offence will be assessed in respect of each
of the criteria, and then the individual assessments combined as a
measure of ( cverall) offence seriousness. Thus the offence
seriousness for burglary will be the aggri:gate of the seriousness
on each of violence, loss and organisation. In this, allowance can
1eadily be made for the relative importance (weight) of the
criteria, but it is not nece~sary to explain that for present
purposes.
9 frr this purpose, a case fact may constitute the joint
consideration of several case facts, each one relying on t~ other
for its significance (e.g. a fact of mitigation may be that the
offender was, say, drunk and provoked ard a first offender).
190 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 14 NUMBER 2
In general, offender mitigation can be handled similarly to offence
seriousness.
This sets the scene for the second part of the judgment:
determining the quantum of sentence considered proportionate to the
level of seriousness of the case. For the purpose of representing
proportionate types and quanta of sentence in relation to
seriousness, the appropriate level of differentiation for overall
case seriousness may be in terms of three components: namely,
offence seriousness and offender mitigation but with prior criminal
record being considered separately from the latter as the third
component (see Figure 1). The minimum number of distinctions on
each of these components of seriousness is two, being the upper and
lower levels. For offence seriousness, the offence being
residential burglary, the lower level would be 'no violence', and
perhaps 'little more than spontaneous and opportunistic' and
'little loss'. In respect of prior criminal record, the lower level
might be 'no previous offending'. The offender tying up an elderly
householder would mark the upper level on violence. And so on.
However, a third distinction, midway between the upper and lower
levels, would provide greater density in the representation. Three
distinctions on each of the three components of case seriousness
give rise to 27 variations for the offence category in question,
and 27 corresponding proportionate sentences spanning the range of
seriousness for this offence. The accompanying framework, at first
blush perhaps off puttingly complex, is actually a useful way of
representing the relationship between the various combinations of
case fact and sentence in the sentencing decision.
Figure 1: Proportionate Framework - Sentences for Combinations of
the Components of Case Seriousness
(reproduced from Lovegrove 2001 with the permission of Sweet and
Maxwell)
High
B····································O···-······································O
Little
Note: the figures in the cells are years and months of
imprisonment.
NOVEMBER 2002 INTUITION, STRUCTURE AND SENTENCING 191
The framework takes the form of a cube - the diagram shows three of
its six sides. Each ce11 is formed by the intersection of one level
of seriousness (upper, medium, lower) of each of the three
components of case seriousness (offence seriousness, prior criminal
record, offender mitigation), and represents one of the 27
variations for the offence category. The figure in the cell is the
illustrative proportionate sentence for the cases falling in that
cell. The cell at the bottom left-hand comer of the front of the
cube represents low (lower level) offence seriousness, a serious
(upper level) prior criminal record, and little (lower level) by
way of mitigation, the proportionate sentence for this combination
of levels being one year and six months' imprisonment. To
understand the framework, it is helpful to deconstruct it in
layers: in the top horizontal layer the nine cases are all of high
offence seriousness, and in the bottom horizontal layer the cases
are of low offence seriousness; similarly, all the cases in the
left vertical layer are characterised by a serious criminal record,
and so on; finally, the front vertical layer represents little by
way of mitigation. Of course, a potentially large number of
different combinations of factual circumstances (cases) may come
within the scope of a particular cell. This is because the 27
variations relate to levels, and a variety of case facts may
satisfy a particular level of seriousness on a component (e.g. the
above definition of victim violence - one of the three criteria
comprising offence seriousness - shows that its highest level of
seriousness - 'confrontation - terror without serious injury' -
would be satisfied by one of several case facts, each of which may
be satisfied by a variety of actual circumstances); moreover, each
of the 27 variations represents the intersection of three
components.
For the purpose of the framework, there will be 27 sentences, one
for each cell. All are properly judicial, intuitively determined as
appropriate to cases representing the cells. Since these judgments
are made for cases, they are necessarily holistic. 10 In fact, the
five illustrative sentences in Figure I were fixed by an English
judge.
What is appropriate by way o[ sentence in a particular case would
be determined by placing the case appropriately in relation to the
framework and, where necessary, interpolating or extrapolating from
the represented -.entences. Consider a case, its particular
circu:nstances representing high offence -.eriousness, little by
way of mitigation, and falling between the upper and medium levels
ou prior criminal record; interpoiating from the framework, the
proportionate sentence for this case would be ju~t over three years
and six months (i.e. a little more than midway between the
guideline sentences of four years and three ycar~ 11 ). The density
of the sentences in the framework would appear to offer sufficient
precision for sentencing.
The aggregation of seriousness (sentence) across multiple
counts
This .;oncerns the offender who is sentenced for more than one
offence and the offences relate to separate incidents, say, two
robberies and one burglary. This too is a quantitative decis~on.
The author has developed a framework and process for this decision;
however, it is no: presented here since guideline judgments to date
have not dealt with the multiple offenjer (see Lovegrove 2000, in
press).
10 Tte procedures which should be followed to maximise the validity
of this process have been discussed and se· out in Lovegrove (1989,
1997).
11 'a little more than midway' because the guideline sentence of
three years is a little more than midway beween the sentence of
four years and the one of one year and six months, indicating a
tendency to non lirearity.
192 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 14 NUMBER 2
Guideline Judgments as an Explicit Sentencing Framework
For the purpose of this analysis, the guideline judgments of the
New South Wales Court of Criminal Appeal will be the focus of
attention. They represent the most established formal system of
such guidance. Their purpose is to structure the decision making of
sentencing judges as a means of guidance (see Spigelman 1999).
There are now five of these judgments, and they take three general
forms.
In one, a sentence or range of sentence considered appropriate to a
particular or limited set of factual circumstances is provided as a
standard together with a non-exhaustive list of case factors which
may require (or do not justify) departure from the standard. The
factual circumstances have been presented in one of three
ways:
a pattern of case circumstances involving multiple case factors
(Henry - armed rob bery); a threshold level of seriousness on a
particular case factor (Jurisic - dangerous driY ing causing
grievous bodily harm or death); several levels of seriousness
across a range on a particular case factor (Wong - impor tation of
heroin and cocaine).
In the second form, the guideline comprises a non-exhaustive list
of potentially aggravating and mitigating factors (Ponfield -
burglary).
In the third, the guideline specifies, for a particular case fact
or a set of case facts, a percentage discount to be given on what
otherwise would be the appropriate sentence (Thomson -- plea of
guilty).
Each guideline relates to only one category or sub-category of
offence. A summary of the main elements of each guideline
follows.
Henry
'pattern' defined by: young offender, little or no criminal history
weapon like a knife, capable of killing or injury Jimited planning
limited, if any, actual violence but a real threat victim
vulnerable (e.g. shopkeeper) small amount taken plea of guilty, but
strong Crown case.
other factors: 13 aggravating and mitigating factors (generally
related to those in the 'pattern' but including the offender's
rehabilitation prospects) and one. drug addiction, not of itself
mitigating but of potential relevance to, for example,
rehabilitation.
guideline sentence: 4-5 years' imprisonment appropriate to the
'pattern'; non-custodial sentences to be regarded as
exceptional.
Jurisic
'threshold level' defined by: abandonment of responsibility
(threshold level) marked by any one of seven indicative factors
(e.g. degree of speed); this is to be taken in association with a
guilty plea.
other factors: 6 other aggravating factors indicative of
abandonment of responsibility and 2 aggravating factors related to
risk of and actual injury.
NOVEMBER 2002 INTUITION, STRUCTURE AND SENTENCING 193
guideline sentence: sentence of imprisonment of< 3 years (in
cases of death) and < 2 years (in cases of grievous injury)
should be exceptional; non-custodial sentence to be exceptional,
almost invariably confined to a case involving momentary
inattention or misjudgment.
Wong
levels across range defined by: guideline sentences:
low level trafficable quantity (2 grams-200 grams) 5 to 7
years
mid level trafficable quantity (200 grams-I kilogram) 6 to 9
years
high range trafficable quantity (1 kilogram-1.5 kilograms) (heroin)
(1 kilogram-2 kilograms) (cocaine) 7 to 10 years
low range commercial quantity (1.5 kilograms-3.5 kilograms)
(heroin) (2 kilograms-3.5 kilograms) (cocaine) 8 to 12 years
substantial commercial quantity (3.5 kilograms-IO kilograms) 10 to
15 years
The above apply to couriers and those low in the hierarchy.
other factors: the offender being a principal (cf courier) or
otherwise high (cf low) in the hierarchy as aggravating, and
substantial degree of assistance and plea of guilty as
mitigating.
(n.b. quantity is an exceptionally important factor, and many
factors commonly taken into account are intended to be encompassed
within the range, but departures may be justified.)
Ponfield
A list of 11 aggravating factors., two mitigating factors and one
relevant hut not mitigating factor,
Thomson
A guilty plea norrnaHy warrants a 10-25 per cent discount on
sentence for its utilitarian value. The degree of the discount is
primarily determined by two factors: the timing of the plea and the
complexity of the case. In some cases the discount will be outside
of the range; in fact, no discount may be appropriate in very
serious cases, and in others it will produce a non-custodia]
sentence. In cases where the plea involves other matters such as
contrition and victim vulnerability, a discount up to 35 per cent
may be appropriate.
194 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 14 NUMBER 2
The Two-Stage Approach as an Explicit Sentencing Framework and
Process
The two-stage approach has already been outlined and does not
require elaboration. For the purpose of the present analysis, in
fact, there is no need to distinguish it from numerical guideline
judgments. What matters here is that both involve, in effect,
fixing a notional sentence in the light of a consideration of only
a part of the circumstances of potential relevance to the case and
then requiring that allowance be made by way of an adjustment to
this notional sentence for the remaining circumstances.
Evaluation of the Elaborated Sentencing Framework and Process
Does the elaborated framework overcome the acknowledged limitations
of intuitive thought? And, in attempting this, are the perceived
potential dangers of non-intuitive thought avoided? If the answer
to these two questions is in the affirmative, then this sentencing
framework can act as a standard of good legal decision making
against which to judge guideline judgments as a means of
structuring the decision making of sentencing judges.
Overcoming the limitations of intuitive thought
There are three matters for consideration.
First, disparity in the choice and weighting of penal aims arises
because judges vary in their predilections on this and their
understanding of the significance of particular factors. This is
exacerbated because the decision involves a choice between multiple
combinations of factors open to various interpretations. The
provision of indicators of the appropriateness of the various aims
can only serve to reduce the inherent subjectivity in the exercise.
Disparity also arises from differences between judges in their
preparedness to impose tough (or lenient) sentences; the sentences
in the framework for proportionality serve uniformity in this
respect; and, since the framework covers a wide range of factors
and of case seriousness, there is not significant opportunity for
idiosyncrasy to influence decision making. (Also relevant to this
matter are the following two points.)
Secondly, coherence in the face of potentially numerous relevant
case factors is facilitated by the framework; it promotes the
orderly consideration of the relevant factors by: (1) showing a
wide range of factors to be considered as potentially relevant; (2)
allocating each one to its proper place (or places) in the
sentencing decision; (3) demonstrating how each factor, considered
as relevant, singly or in combination affects the sentence
considered appropriate.
Thirdly, the representation of the sentencing decision in the
framework is underpinned by a logic: proper distinctions are drawn
between case facts as indicators of sentencing aims and as elements
on a scale of seriousness. Moreover, although the component of the
framework relating to proportionality is founded on case facts, it
provides a mechanism for scaling quantitative and qualitative
relationships which is numerically sound.
Avoiding the potential dangers of non-intuitive thought
There are seven matters for consideration.
1. The framework covers what approaches a comprehensive range of
potentially relevant case factors and factor effects; this is
achieved because: (1) the framework incorporates the three major
components of the sentencing decision, namely, the selection of
penal goals, the proportionate relationship between seriousness and
sentence, and the cumula-
NOVEMBER 2002 INTUITION, STRUCTURE AND SENTENCING 195
tion of seriousness (sentence) across counts; with respect to the
second of these (2) case facts can be scaled on the criteria
(dimensions) defining seriousness whether the charac ter of these
facts be quantitative or qualitative; and (3) each of these
seriousness assess ments can be combined, and given its due
importance, on a scale for each of offence seriousness, prior
criminal record, and offender mitigation; ( 4) cases comprising any
combination of the more common circumstances relating to offence
seriousness, prior criminal record, and offender mitigation can be
placed within the framework showing the proportionate relationship
between overall case seriousness and sentence.
2. The framework provides a sentence for a case. This sentence is
proportionate to the extent that the circumstances of the case are
covered by the framework. Thus the sen tence is a notional one.
The framework serves to minimise errors associated with the attempt
to make due allowance for additional matters when adjusting the
notional sen tence, in two ways: (1) in any one case, adjustment
will be required for few factors, and be comparatively small in
magnitude, because of the framework's comprehensive cov erage (the
potential problem arises only when the facts of the instant case do
not fully come within the scope of any one of the 27 sets of
factual circumstances defining the cells in the framework); (2)
since the relationship between case fact and sentence is specified
for 27 combinations of offence seriousness, prior criminal record
and offender mitigation and across the working range of overall
case seriousness, the sen tencer's proper course is well charted,
thus facilitating ready and accurate extrapolation and
interpolation from the framework.
3. Any tendency for judges to ignore matters not in the framework
would be expected to be aggravated when it is not clear what the
representation incorporates and how case factors relate to
sentence, and the process of adjustment is obscure; with respect to
these, however, the framework is transparent. Moreover, this point
is less rather than more significant in view of the framework's
comprehensive coverage of case factors.
4. The framework provides for the fact that case circumstances
cannot be considered prop erly in isolation; it achieves this
thus: ( l) it distinguishes between the selec6on of penal aims
(whether, for example, proportionate puni~hment or rehabilitation -
or a balance between the two---- is appropriate in a particular
case) and the implementation of an aim (\.vhat, e"g., the
proportionate punishment is for the case); (2) accordingly, the one
case factor can play its proper part in the sentencing decision
across aims (e.g. remorse may be retevant as an indicator of
rehabilitation prospect-sand as an element of case serious ness by
way of mitigation of what otherwise would be the proportionate
sentence); (3) the framework incorporates a large number of factors
and all factors in the framework are, by virtue of the framework,
considered in combination with all other factors. Sec ondly, but
related to this point, what are treated as case facts on a
dimension can easily represent the joint consideration of multiple
case facts (i.e. the actual case fact in the framework could be
that the offender was, say, drunk and provoked and ... ). Thirdly,
(and because of the above two features) particular case facts do
not have a constant per-
centage effect across cases. 12 Finally, the impmtance of a factor
such as a guilty plea may be thought to vary (i.e. interact with)
the seriousness of the case. This aspect has not been incorporated
in the framework but it could be done simply.
12 It may appear that in the framework relating seriousness to
proportionate sentence, particular case facts on dimensions have,
the previous considerations aside, a specified constant effect on
sentence across cases. This is true, but in respect only of the
sentence proportionate to a case at the highest level of overall
seriousness for the factors in the framework. In fact, the actual
percentage effect on sentence of a particular case fact varies
across cases with the level of overall case seriousness (and
proportionate sentence).
196 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 14 NUMBER 2
5. The form of the framework obviates the need for the (notional)
proportionate sentences provided there to be determined partly in
regard to a sub-set of potentially relevant case circumstances and
partly in the abstract; rather, each of the sentences in the
framework is determined for a particular combination of offence
seriousness, prior criminal record and offender mitigation
considered jointly, this being based on a wide range of case facts.
Moreover, in the application of the framework, the risk of actual
circumstances and abstract matters being confounded is reduced in
view of the framework's factual breadth.
6. The problem of sentencing decisions lacking a logic where the
notional sentence is of one sanction type and the appropriate
sentence is of another does not arise in respect of the framework;
there are two reasons for this: (1) the sentences in the framework
are based not only on factors related to the offence, but also (and
jointly) on those related to the offender; (2) adjustment from a
framework sentence of imprisonment to a non custodial sentence can
arise on two grounds: the additional factors either justify a dif
ferent penal goal (e.g. rehabilitation) or reduce the
(proportionate) seriousness of the case; the logic of the framework
can accommodate both matters.
7. Multiplicity of error is a possibility in the individual and
sequential consideration of case facts, particularly in regard to
the determination of a proportionate sentence; in this, the problem
is real where there is cumulation of error towards leniency or
harsh ness. Three of the features of the framework act in concert
to avert this problem: ( 1) the proportionate sentences in the
framework are intuitively determined and in regard to a
comprehensive set of case circumstances considered jointly; (2) the
framework facili tates these sentences being seen in a systematic
relationship, one to another, in respect to offence seriousness,
prior criminal record, and offender mitigation and, accordingly,
reveals whether these sentences are in due proportion; (3) the
sentences are well dis tributed throughout the framework, thus
confining possible effects of cumulative error.
In view of this, the elaborated sentencing framework and process
would appear to moderate significantly the limitations of intuitive
thought and not be subject to the perceived potential dangers of
non--intuitive thought in sentencing. Because of this, it is suited
to acting as a standard of good legal decision making against which
to evaluate guideline judgments as attempts to overcome the
acknowledged problems of intuitive thought.
Evaluation of Guideline Judgments
The questions for guideline judgments, as for the elaborated
framework, are: do they overcome the acknowledged limitations of
intuitive thought? and, in attempting this, are the perceived
potential dangers of non-intuitive thought avoided?
Overcoming the limitations of intuitive thought
There are three matters for consideration. They relate to
consistency, coherence and logic.
In view of the nature of these guide1ine judgments, the following
questions can be framed conveniently to gauge their potential
impact on consistency: ( 1) to what extent are the matters relevant
to sentence covered in the factual set of circumstances acting as
the standard? (consistency requires good coverage); (2) would
variations, particularly significant variations, from the standard
be expected to be common? (variation is inimical to consistency);
(3) with respect to the circumstances not covered in the standard,
what assumptions are to be made about them? and, what is their
potential effect individually or
NOVEMBER 2002 INTUITCON, STRUCTURE AND SENTENCING 197
in combination on sentence? (silence does not favour consistency).
The four guideline judgments vary in terms of the criteria
favouring consistency; none would appear to serve consistency
well.
Henry may cover the offence as a sub-category quite well but leaves
significant matters relating to the offender open. In each of
Jurisic and Wong, the standard is based on several factors only.
Ponfield does not offer a standard. In regard to Henry, research
shows that although cases of robbery demonstrate patterning,
significant variation is not uncommon (see NSW Bureau of Crime
Statistics and Research 1987). Only Wong provides any significant
information on the effect of matters outside of the standard: they
can normally be accommodated within the standard expressed as
relatively narrow ranges of imprisonment. Henry and Jurisic
acknowledge the additional factors as potentially aggravating or
mitigating; in respect of this, mitigation is confined,
non-custodial sentences being deemed exceptional, but much room is
left to the sentencer.
Coherence requires: (1) information on what factors are to be taken
into account; (2) direction on how these factors are to be taken
into account, together with (3) indications of the effects of
various combinations of factors on sentence as markers. Again, much
is to be desired.
The four general guideline judgments give, to a greater or lesser
extent, a reasonable coverage of relevant matters in respect of the
offence, but fall short in regard to the offender.
All four implicitly treat case factors as representing bits of
seriousness, to be added or subtracted in aggravation or
mitigation. This is probably adequate for drug importation (Wong).
But it is certainly not so for burglary (Ponfield) where the
appropriate weighting of the penal goal of rehabilitation may be a
prominent part of the sentencing decision, and requires factors to
be treated as indicators as well. The significance of this omission
for Jurisic and Henry probably lies between these two
extremes.
Providing indications of the combined effects on sentence of
relevant factors is something guideline judgments do badly; again,
this would be expected to have least ~jgnjficance for Wong (since
the one factor of quantity is deemed to be so important 13) and
most for Pm~field (sjnce in burglary numerous individual factors
together can-y much weight but appear to exhibit little patterning\
but should be regarded as significant for Jurisic and Henry.
Guideljne judgments demonstrate no more than a crude and partial
logic for the purpose of decision making in sentencing.
Distinctions generally are not drawn between factors as indicators
of sentencing aims and factors on a scale of seriousness, even when
this is clearly critical to what is appropriate by way of sentence
as in burglary (Ponfield). Moreover, it is taken for granted that
qualitative factors (e.g. degree of violence) cannot be scaled
quantitatively (see Jurisic). Finally, in Ponfield, the judgment no
more than lists the factors of potential relevance to seriousness,
the reason being the great diversity in the circumstances of the
commission of this offence. In this the court is tacitly
acknowledging that it does not know how to represent the
relationship between case fact and sentence for all possible
combinations of an extensive list of case facts. This limitation is
critical for an offence like burglary. But it is problematic for an
offence like robbery, as in Henry; although there are apparent
patterns, they comprise few factors and, even to this extent, only
approximate most factual circumstances.
13 But see the judgment of the High Court in this case.
198 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 14 NUMBER 2
Avoiding the potential dangers of non-intuitive thought
There are seven matters for consideration.
1. The guideline judgments omit from their representation of the
sentencing decision many critical factors and factor effects;
although this is probably of little practical import in regard to
Wong, it certainly is for the three others.
2. There is a very real danger of the allowance for additional
relevant matters as an adjustment to the notional guideline
sentence not reflecting their true importance. This problem arises
because guideline judgments aim at guidance for the purposes of
con trol. To do this they generally offer a standard sentence or
range of sentence as appro priate to a defined set of case
circumstances, which sentences are to be treated as presumptive;
the presumption may be strong and explicit or weak and implicit.
The danger of inadequate individualisation is most likely to be
realised when there is a standard together with a strong
presumption; the problem will be exacerbated if the standard is
narrow, relates to the effect on sentence of relatively few of the
potential number of relevant factor variations, and the reference
to other factors and their poten tial significance and effects is
scant. The current guideline judgments demonstrate these features
to a greater or lesser extent. Jurisic, Henry and Wong each offers
a relatively narrow standard (Ponfield does not propound a
standard). Jurisic carries a strong, explicit presumption against
sentences below the level of imprisonment in the standard. Wong has
a strong and explicit presumption against sen tences outside of
the standard ranges of imprisonment. In Henry the presumption is
strong against non-custodial sentences; in view of one of the
reasons for promulgating the guideline - to increase the level of
custodial penalties - there must be taken to be an implicit but
nevertheless moderate presumption against sentences below the
stand ard. Jurisic and Henry carry a weak and implicit presumption
against sentences above the standard in the sense that there may be
a tendency for judges to treat matters relat ing to the standard
as more important than matters mentioned but not in the standard as
more important than matters not mentioned. In Henry, but
particularly in Jurisic and in Wong, the standard is based on
relatively few factors and, with respect to other factors, little
guidance is given to the sentencer, this point applying especially
in respect of matters relating to the offender.
3. There is to be expected a tendency for judges to ignore matters
not mentioned in the guideline judgments. One reason is that it is
not clear whether the standard incorporates these other matters
and, if it does, their assumed level of seriousness. Moreover, for
the matters specified as potentially relevant but not incorporated
in the standard, it is left open as to whether they relate to the
appropriate penal aim or proportionate sentence (or both); and, if
they are to be taken into account, there is the question of the
weight to be given to them. Doubt about these things might be
thought to favour neglect, especially to the extent that the
sentencing standard carries a significant presumption. This will
make for problematic sentencing especially for cases in which a
significant number of factors outside of the guidance may singly or
in combination carry substantial weight. The danger for Wong is
probably not of great practical significance, as long as the
importance of quantity is accepted. But for Henry and Jurisic, the
problem, especially in regard to the offender, may be significant.
For Ponfield, there is reason for less con cern, in view of the
absence of a standard and, even though the list of relevant factors
largely refers to the offence, this is unlikely to diminish
awareness of what is well known to be mitigating by way of the
offender.
NOVEMBER 2002 INTUITION, STRUCTURE AND SENTENCING 199
4. In guideline judgments, case factors are left largely to be
considered in isolation. There are three aspects to this: ( 1) the
effects of factors are dealt with in relation only to the scaling
of proportionate sentences, not to the selection of appropriate
penal goals; (2) the number of factors defining each of the
standard sets of circumstances - and for this purpose considered in
combination - is based on relatively few factors, this applying
more to the offender than the offence; (3) to the extent that other
factors are mentioned in the guidelines, they are considered no
more than by way of a list as indi vidually aggravating or
mitigating. This applies to all three in which a standard is
propounded (Henry, Jurisic and Wong). In Ponfield, the list of
specified relevant factors necessarily leaves them to be consid
ered individually. And in Thomson the percentage discount on
sentence for a particular factor could eas ily be read as
generally fixed across seriousness within a category/sub-category
of offence. But consider the following. In respect of the
proportionate framework, the per centage effect on sentence of a
factor having a constant weight across levels of case seriousness
will be less with greater seriousness (the matter of a case fact as
the joint consideration of multiple facts aside). Thus the effect
of assigning a constant percent age value to a factor across
seriousness is to have it interact with seriousness, such that it
carries greater importance for greater seriousness. However, there
is no evidence in the judgment that this was intended; rather, on
the contrary, the judgment contemplates a minimal discount in
certain very serious cases.
5. In guideline judgments standard sentences are set for specified
sets of circumstances. Clearly, where the sets of circumstances are
based on a limited number of specified factors, the exercise is
necessarily artificial, and it is not clear what has been taken
into account. In real-life sentencing, by way of contrast, numerous
matters are there to be considered and there are no unrealistic
circumstances. But the former applies to a11 three guideline
judgments in which a standard is set (Henry, Jurisic and Wong),
since in each one the standard is based on fewer rather than more
factors, the offence rather than the offender. The artificiality
invites error in the setting of the standard. The lack of clarity
in what has been taken into account hazards confounding the facts
of the hypothetical guideline case and the actual case in the
application of the guideline.
6. ln two of the three guideline judgments providing a sentence
fr1r a standf.lrd 'iet of clrcum-· stances, the sentence is one of
imprisonment, yet the appropriateness of a non-custodial sentence
is recognized in exceptional circumstances (Jurisic and Henry). In
Thomson, too, a non-custodial sentence is contemplated as the
effect of the discount for a plea. Since guideline judgments
implicitly treat case facts as representing bits of seriousness, to
be added or subtracted in aggravation or mitigation, is it the case
that non-custodial sentences are proportionate to low levels of
case seriousness? If so, what defines the threshold? Or, as an
alternative or in addition, is it that a non-custodial sentence is
appropriate when the goal of rehabilitation is activated? If so,
what are the relevant cir-
cumstances? Guideline judgments leave these waters largely
uncharted. 14
7. Guideline judgments attempt to guide in part by setting out
factors relevant to sen tence; this may be done by way of a
standard limited set of circumstances together with a list of
individual aggravating and mitigating factors (as in Jurisic, Henry
and Wong), by a list of relevant factors (Ponfield), or by an
assigned discount to a single factor (Thomson).
14 The factor of momentary inattention or misjudgment in Jurisic
aside.
200 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 14 NUMBER 2
This must favour the individual consideration of relevant matters.
As a consequence, when allowance is being made for these individual
factors, there is the possibility of over- or under-estimating
their combined effects. This is made all the more likely because
the essence of the process is antithetical to considering the
resultant sentence globally, and these judgments do not provide
multiple and systematically related stand ards as touchstones for
the process.
In summary, guideline judgments would not be expected to
significantly moderate inconsistency, but to the extent that they
do, they would be expected to inhibit individualisation and, in any
case, are not without their problems in regard to the other
prerequisites of good legal decision making, namely, those of
coherence and logic.
Conclusions
The judicial intuitionists are right: the more recent judicial
attempts at greater consistency - guideline judgments and the
two-stage approach - hazard inadequate individualisation and error.
These limitations arise from three interrelated sources. The first
concerns what is required of a guideline sentence: a sentence as
guidance must be expressed in terms of a relatively narrow range.
The second and third concern the nature of case circumstances:
cases falling in the same legal category or sub-category of offence
vary widely in regard to the facts of the offence and the
characteristics of the offender; and, while some factors of
aggravation and mitigation in the scaling of seriousness have a
quantitative character, most are qualitative. But guideline
judgments in their current form do not incorporate the scaling of
qualitative factors and cannot represent all combinations of these
qualitative and quantitative factors. Thus, they necessarily give
guidance on no more than a narrow aspect of this variation, and are
based on or force upon the user a crude logic. This inevitably will
hazard inconsistency, incoherence and inadequate
individualisation.
The conclusions seem compelling. Unless the limitations of current
judicial attempts to structure their sentencing discretion are
overcome, the continued use of these measures will imperil justice.
It is still wise to speak of 'good old' judicial intuition;
'old-fashioned' judicial intuition would be a premature
epithet.
Yet this intuition as a means of decision making in sentencing
leaves much to be desired. Indeed, disquiet about it is the
motivation for the current less-intuitive approaches. These
initiatives are to be commended and encouraged for what they seek
to improve upon. But for what they achieve. they cannot be
sanctioned. Simply, they are numerically too unsophisticated.
Therefore, it is to be hoped that the higher judiciary will press
on with this reform, yet accepting the development of more complex
guidance as a challenge. In the High Court case of Wong, Gaudron,
Gummow and Hayne JJ viewed the application of such complex guidance
as difficult, perhaps impossible. The former is certainly true. Yet
one hopes that this is not taken as a reason for not attempting to
develop a framework appropriate to the numerical aspects of
judicial thinking in sentencing. In judicial judgments, attempts to
deal with legal problems lending themselves to a narrative
discourse are Herculean; why should not the same endeavour be worth
it for the numerical?
The elaborated sentencing framework and process summarised above
demonstrate what is required for decision making. It addresses the
numerical problems currently besetting guideline judgments. And, in
doing this, it moves towards overcoming the limitations of judicial
intuition, better satisfying the four prerequisites of good
decision making in sentencing -- individualisation, consistency,
coherence and logic. Yet the proposed framework should not be
thought of as involving mechanical calculation and entailing
NOVEMBER 2002 INTUITION, STRUCTURE AND SENTENCING 201
precise determination. Rather, the fundamentals of the framework
for proportionate sentencing compare with the traditional
sentencing process, namely, sentence comparisons across cases in
terms of multiple case facts, which sentences are holistically
determined according to a judge's feeling for the application of
the criminal law to the particular circumstances of the case. What
alone distinguishes the framework from judicial intuition is that
the framework, in addition, systematically interrelates cases - and
the sentences for those cases - with respect to seriousness for all
combinations of case facts in the scheme. This innovative element
facilitates proper distinctions being drawn between cases.
The fixing of sentences in the framework clearly still involves
traditional intuition in the sense of instinctive justice. But, in
respect of the rest of the framework - the interrelationships
between case facts, seriousness and sentence - the decision making
required of the sentencer is not intuitive in the traditional
judicial sense. What, then, is it? For the purpose of explanation,
it may be profitable to use skilled performance as an analogy,
drawing distinctions between the novice and the expert and
considering the basis of skilled performance. The novice is one who
brings little more than commonsense to the task: for (say) cricket,
there is not a framework and rules interrelating body, bat and
ball. By way of contrast, an expert is one who has this analytic
knowledge base and has practised its application to the task in all
its variations. Early on, decisions are made slowly and
consciously, and the distinctions between the various courses of
action are crude; in time, decisions are made readily and largely
unconsciously, and actions reflect subtle distinctions, not lending
themselves to explanation. Thus expert decision making as described
here would appear akin to a form of intuition characterised as
functional reasoning. This has been defined as apprehending, with
little mental effort and in quantitative terms, how the assessment
about a set of _circumstances changes as a function of variation in
one or more of the comprising factors 15 (see Abernathy & Hamm
1995, and also von Winterfeldt & Edwards 1986). For the expe1t,
intuitive thinking is based on an implicit understanding of the
interrelationships between the factors relevant to the decision; it
is born of a deep task involvement through practice and grows out
of analysis. This is very different from traditional judicial
intuition, its virtue~ being championed on the basis of there being
no substantial analytic foundation (or framework) for the
interrelationships between the factors relevant to sentence. In
respect of this, there ]s an absence of thought, the intuition
being for want of analysis, as for the novice. Indeed, there is
empirical support for this. The author asked experienced judges to
think aloud as they determined sentences according to the totality
pr?ndpJc for a serie<. of cases involving multiple offending.
Most did not bring to the task even a general decision framework.
and in the individual case showed faltering thought (see generally,
Lovegrove: 1997 ).
Intuition as functional reasoning would seem to be more appropriate
to rational sentencing, where decision making invo]ves reconciling
cross-currents of aggravating and TPitigating factors according to
principle. The purpose of the proposed framework and its associated
process is to facilitate this form of thinking as a means by which
judges digest the facts of a case in exercising their discretionary
sentencing judgment. Unfortunately, the framework has been well
elaborated only in respect of proportionate sentencing for single
offences. Work on the selection of penal goals remains to be
undertaken, and the analysis of the sentencing of multiple
offenders is yet to be completed. 16 These are matters of
urgency.
15 Nevertheless, in novel situations the functional reasoning will
be more analytic than intuitive in character. 16 With respect to
this third component, see Love grove (2000. in press).
202 CURRENT ISSUES IN CRIMINAL JUSTICE
List of Cases
R v Gallagher (1991) 23 NSWLR 220.
R v Henry and Others (1999) 46 NSWLR 346.
House v The King (1936) 55 CLR 499.
R v Jurisic ( 1998) 45 NS WLR 209.
VOLUME 14 NUMBER 2
R v Lett (1995) Unreported judgment of the New South Wales Court of
Criminal Appeal, 27 March.
R v McCormack and Others [1981] VR 104.
R v Nagy [1992] 1VR637.
R v Ngui and Tiong [2000] 1VR579.
R v O'Brien (1991) 55 A Crim R 410.
R v Ponfield, Scott, Ryan and Johnson (1999) 48 NSWLR 327.
Postiglione v The Queen (1997) 189 CLR 295.
R v Punch (1993) 9 WAR 486.
R v Raggett, Douglas and Miller (1990) 50 A Crim R 41.
R v Ramage (1993) Unreported judgment of the Victorian Court of
Criminal Appeal, 15 September.
Ryan v The Queen [2001] HCA 21.
R v Scadden (1993) Unreported judgment of the Victorian Court of
Criminal Appeal, 22 March.
R v Thomson and Houlton (2000) 49 NSWLR 383.
R v Williscroft, Weston, Woodley and Robinson [1975] YR 292.
R v Wong and Leung (1999) 48 NSWLR 340.
Wong and Leung v The Queen [2001] HCA 64.
R v Young and Others ll990] VR 951.
NOVEMBER 2002 INTUITION, STRUCTURE AND SENTENCING 203
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